Dispute - Applicant to Call Witness to Give Oral Evidence at Trial

Question 1

What case sets out the factors the court must consider in an application to call a witness to give oral evidence at trial set out?

Answer 1

Foster v Action Avaition Ltd [2013]

Question 2

What are the factors set out in case law that the court must consider in an application to call a witness to give oral evidence at trial?

Answer 2

1) The reason the evidence was not put forward before.

2) The significance of the evidence.

3) The prejudice to the applicant if the application is refused.

4) The prejudice to the other parties if the application is allowed; and,

5) The need to do justice to all the parties, having regard to the overriding objective.

Question 3

What other application must be made simultaneously with an application to call a witness to give oral evidence at trial; and why?

Answer 3

Relief from sanctions must be sought and obtained before the court will consider an application to call a witness to give oral evidence at trial.

This is because the prohibition on calling a witness who has not served a witness statement is time is an ‘automatic’ sanction.